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Old October 7, 2011, 10:06 AM   #1
hartlock
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packing at work

Hypothetical situation, here in Texas. Lets say your employer
tells you that you cant carry your gun at work, and lets say
that later on, you and your employer are confronted by an
armed robber. The robber decides to leave no witnesses and
shoots both you and the boss. Can he be sued for injuries you
recieved in the robbery, because of the fact he told you that
you cant carry in his business? Just wondering.
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Old October 7, 2011, 10:14 AM   #2
Glenn E. Meyer
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We've examined this issue before with our resident legal experts and by examining law view articles on the subject.

The quick answer is that most think such a suit would unsuccessful on a legal basis and also difficult on a practical basis.
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Old October 7, 2011, 10:28 AM   #3
hartlock
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Thanks for the answer, Glenn. I had thought about that
alot. Just seems like you would have SOME grounds to
sue, but I guess not!
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Old October 7, 2011, 10:30 AM   #4
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Difficult, but anything is possible.

Lots of variables: Right situation, right time, right jury & judge, right plaintiff...

Where I work neither employees nor the public is allowed to carry weapons (signage and whatnot). But even if signs were not posted, I couldn't carry as an employee under our policies.

Have been told by a few people who come in regularly, that if they are injured or killed as a result of not being able to carry, it would be tested.
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Old October 7, 2011, 10:34 AM   #5
4V50 Gary
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To sue under tort there must be a basis. Generally this is negligence. Negligence arises where there is a duty, the breach thereof resulted in plaintiff's harm. As far as I know, there is no duty of an employer to protect employees from criminal activity.
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Old October 7, 2011, 11:27 AM   #6
Stressfire
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Quote:
there is no duty of an employer to protect employees from criminal activity.
Nor that I know of either.

But employers do have an obligation to provide a safe work environment. Does that include allowing you to carry? I dunno but that would make me feel very safe

I think it would actually have to happen to know for sure
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Old October 7, 2011, 11:59 AM   #7
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I doubt a lawyer would handle such a case. They do not like to loose. Also you would end up paying oodles with less than a miniscule chance that the case would even be allowed to go to court.

Strange but most places that do not allow for carry it is over insurance being afraid of victim law suits in the event of an employee shooting fellow workers. The age old dumbness of the thought process that the shooter would not have had a gun there if it were against company policy.
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Old October 7, 2011, 12:03 PM   #8
musher
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Seems to me that you'd have real problems with this in an at will environment.

The employee-employer relationship is presumed voluntary and can be dissolved at any time for any (or no) reason with a few exceptions for protected classes.

Your continued acceptance of employment after having the conditions of that employment explained should be presumed to imply acceptance of the conditions and any real or perceived risk associated with those conditions.

The duty to provide a safe work environment doesn't entail protection against unforeseeable events like a meteorite puncturing your office ceiling. It also doesn't require extraordinary efforts to eliminate all risk from foreseeable events like a fire. Your employer is required to take reasonable precautions against killing you in a building fire, but isn't required to house you in a completely fireproof environment. It's a risk balancing and cost vs reasonable risk reduction kind of equation.

You might try to argue that banning personally carried firearms/weapons exposes you to unreasonable risk, but I'd suspect that a litany of the locks, alarms, "how to deal with robbers" instructions and so on would add up to reasonable precautions. I think this would be pretty compelling after the lawyers raised the specter of employee on employee violence and the risks that would be added to the workplace if they allowed employees to carry guns.

________________________________
...But Mr. Hartlock we have an obligation to balance the opposing risks to you from robbers and from Crazy Eddie down in accounting. This is an obligation we take very seriously. We have spent a great deal of time considering this very issue. It was our judgement and the judgement of our bean counters that, on the whole, you were exposed to less risk by banning the carry of firearms than you would have been had we allowed the carry of firearms in our office. We are truly sorry you got your tukus blown off, but as you know hindsight doesn't help make decisions.

Given the myriad examples of workers killing their coworkers because of stolen staplers, it was our carefully considered judgment that disarming you and Eddie, then training you to avoid irritating a robber ultimately exposed you to less risk than letting Crazy Eddie carry that Desert Eagle around the showroom.

We enforced a work environment that stacked the odds in favor of your safety, but unfortunately could not guarantee you zero risk. Nor were we required to reduce your risk to zero simply because such a thing is impossible.

We do wonder what you said to anger the robber who shot your tukus. We have decided it would be in your and the company's best interest to retake our scientifically designed "Don't upset the crooks" class. Perhaps carefully taking notes this time would help you understand the class better.

Finally, we do understand that your opinion differs from ours regarding the relative risks we are balancing with this policy. We understand that you might wish to seek employment at another agency who's risk management policy more closely corresponds with your own thinking. This has always been an option for you, even before the whole tukus thing happened.

Should you decide to stay with us, we will be more than happy to order you a 'no tukus' chair for your office to accomodate your new disability.
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Old October 7, 2011, 12:08 PM   #9
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Hartlock, the answer to your question "Can he be sued?" is almost always "yes". As a general matter anyone may be sued for anything at any time.

Given the background of your question the shot employee or his estate would have little chance of prevailing in my state.

One element of such a claim would be that the criminal act that injured a person was a foreseeable cause of injury. However, lots of courts have held that a criminal third party act breaks that causal link. There is even a case holding that in the textbooks used by all first year law students.

Another element is breach of a duty. I am not aware of any case holding that an employer has a duty to let you carry.

But what about an employer's duty to provide a safe workplace? I admire the flexibility of analysis that brings that question to the issue, but the presence of armed employees cuts both ways: if your employer permits you to go armed at work in order to protect you, you are armed to further a company goal as a matter of company policy. If you snap and "go postal", or just have an accident, the resulting injuries would therefore have resulted from a company goal and associated policy.
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Old October 7, 2011, 12:26 PM   #10
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Quote:
Originally Posted by musher
...But Mr. Hartlock we have an obligation to balance the opposing risks to you from robbers and from Crazy Eddie down in accounting. This is an obligation we take very seriously. We have spent a great deal of time considering this very issue. It was our judgement and the judgement of our bean counters that, on the whole, you were exposed to less risk by banning the carry of firearms than you would have been had we allowed the carry of firearms in our office. We are truly sorry you got your tukus blown off, but as you know hindsight doesn't help make decisions.....
Did anyone else get an image of Agent Smith from the Matrix while reading this? Substitute Anderson for Hartlock and I think it fits.

Quote:
if your employer permits you to go armed at work in order to protect you, you are armed to further a company goal as a matter of company policy
Indeed, which would then open up their pockets, much deeper than most of ours, for suit to be filed.

I can't say that I don't understand the reasoningof most corporate entities with regard to weapons, just not their thinking. If "Crazy Eddie from accounting" is planning to go postal on the entire office, do they really think he is going to consult his employee handbook first?
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Old October 7, 2011, 12:38 PM   #11
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Quote:
if your employer permits you to go armed at work in order to protect you, you are armed to further a company goal as a matter of company policy
That seems doubtful to me if the company policy is simply silent on the question of arming oneself for self defense.
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Old October 7, 2011, 01:32 PM   #12
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The law review articles I read stated that if you overtly allow carry, then if the employee does something bad - like goes nuts and shoots up people in a rampage, goes pharmacist on a BG (OK) or nails an innocent - the company is in it as the deep pockets.

Also, as mentioned the legal doctrine that they are liable to protect you doesn't apply strongly to the crime as the responsibility is on the criminal actor. If they knew of a specific threat - you might have a case but being armed might not be the solution for the threat that is the most reasonable to them. There's some doctrine on this on case law that our legal types cited.

Last, since the case is shakey - you have to get a lawyer on contingency and the damages aren't that great in an individual case for many to take it. The company can tie you up in court for ages.

Now, might you get some money on a settlement? Sure, but you might be off claiming they didn't protect you from a reasonable threat as compared to you saving your rear-end in a gun fight?

They might come back to ask you about your level of training? Why did you carry that wussy 22 or 380? All kinds of things.

That's why I'm one of those folks who don't buy the property rights argument raging in another thread and just want legislation that doesn't allow employers or businesses to control carry unless there are technical reasons for such. Also, such legislation removes liability from the employer or business.

But I'm bored with that debate here and that thread. Said my piece on it many times.
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Old October 7, 2011, 01:43 PM   #13
KyJim
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Everyone has missed the most important reason you could not successfully sue your employer under these circumstances --- workers compensation. Worker's comp allows a reduced recovery amount from your employer (usually the insurance carrier) for injuries received on the job regardless of whether the employer or employee was negligent, somebody else was negligent or otherwise caused the injury, or nobody was negligent. There are some very narrow exceptions which would likely not apply here.

You could still file suit against the robber who shot you. Good luck with that one.

A more interesting question is whether there would be any liability for injury to a customer who disarmed himself/herself because of postings on the place of business. It would still be a long shot but there might be some liability in a very limited factual situation.
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Old October 7, 2011, 02:04 PM   #14
Glenn E. Meyer
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The same analysis applied to the customer. Allowing carry was suggested to add liability to the store from the actions of the customer. There wasn't strong support for the customer lawsuit.

One reason in the modification of the TX signs, they were made so obnoxious that stores wouldn't want them for negative PR. But you do see them. For instance, car dealerships in San Antonio that are owned by Red McCombs - a real 'tough' guy - have versions of the 30.06 sign. Some are legit and some not but here's a tough guy, gun friendly, conservative business guy who bans.

I've seen a couple of business analyses that you should allow carry and the risk isn't that much from the lawsuit of the concealed carrier gone awry but no suggestion that it was to avoid a suit from someone who couldn't carry.

As far as not going to that business - well, when I'm in cardiac arrest or with several broken bones - I'm going to the hospital even though it has signs.

- Seriously, there are some places with bans that I cannot avoid.
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Old October 7, 2011, 02:17 PM   #15
hartlock
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This whole thing is hypothetical, anyway. My boss DOES allow me
to carry at work. The business we are in, we are susceptable to
being robbed, and he thought it was a good idea that I did have
my gun at work. I was just wondering out loud if there was any
basis to a law suit filed against an employer say, on the basis of
the original post. Thanks to everyone that responded.
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Old October 7, 2011, 02:50 PM   #16
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Quote:
Originally Posted by KyJim
A more interesting question is whether there would be any liability for injury to a customer who disarmed himself/herself because of postings on the place of business.
That's what I was getting at in my first post.

Quote:
Seriously, there are some places with bans that I cannot avoid.
Yup, same, like work

Quote:
My boss DOES allow me to carry at work.
Were you required to ask permission? Or did he just kinda figure it out one day?
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Old October 7, 2011, 03:31 PM   #17
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Wait a minnit...

Didn't the bad guy kill BOTH of you to "leave no witnesses", if I were bad ass enough to shoot both of you I'd have to be bad enough to make sure there were no survivors. Else what's the point of shooting you both?

Just sayin'...

If however he was a very bad shot and a very dumb crook and you both survived I doubt you cold sue your employer beyond actual health costs, you could go after the bad guy for all kinds of things but crooks are both dumb and usually too lazy to have any money.
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Old October 7, 2011, 03:40 PM   #18
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Quote:
Didn't the bad guy kill BOTH of you to "leave no witnesses"
Aw, crap, didn't even notice that. Foul, foul, I say!
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Old October 7, 2011, 04:06 PM   #19
hartlock
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Actually, if you are shot with a handgun, your chances of
surviving it are pretty good, according to statistics, and I
said in my original post, if a robber came in and "shot" both
of us, I said nothing about "killing" us both! I mean, if
he did that, I dont guess I would be suing anyone, now would
I? Just because he shot us both, to leave no witnesses,
doesnt mean he killed us both!
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Old October 9, 2011, 03:17 PM   #20
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The way most law is today an employer has little to gain by allowing CCW.

Therefore, most of them do not allow it for the reasons Glenn stated. They will win any lawsuit an employee files for not letting them carry and if they let employees carry and there is an accident or such then the business WILL probably be successfully sued and lose money. So practically a business wouldn't do it.

Now; morally should they allow employee CCW? Yes and IMO an employee that disregards the company policy and carries anyway is justified morally to deceive their employer but may get fired without recourse if caught. Like the Pizza Hut guys.
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Old October 9, 2011, 05:06 PM   #21
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Quote:
Originally Posted by 4V50 Gary
To sue under tort there must be a basis. Generally this is negligence. Negligence arises where there is a duty, the breach thereof resulted in plaintiff's harm. As far as I know, there is no duty of an employer to protect employees from criminal activity.
OSHA?

The premise of OSHA is that every employer has a responsibility (a "duty") to provide a safe workplace. It would be a stretch, I'm sure, but the argument might be advanced that by prohibiting employees from taking responsibility for their own personal safety, the employer is assuming that duty. And then failing to fulfill it.
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Old October 9, 2011, 05:18 PM   #22
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Quote:
Seems to me that you'd have real problems with this in an at will environment.
I think that is the best argument against the lawsuit being allowed. Since Texas is an 'At Will' state, the response would simply be that you chose to work there, knowing the policies and accepting them in order to work there. While I may not particularly agree with the rules prohibiting me carrying at work (especially since customers are allowed to), I know that I thought that the arguments were a bit wrong when the smoking ban was instituted in the bars here in Austin. They said it was for the employees who were forced to breathe the second-hand smoke. I thought that was crap, as they were not forced to work there, but I have to remain consistent in my arguments.
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Old October 9, 2011, 06:15 PM   #23
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Apparently lost in the shuffle was the post that answered this question most easily...by pointing out that worker's compensation laws would prohibit such a lawsuit.
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